Who Owns the Rain? Hint: It's Not Always Homeowners

Across the country, resourceful homeowners have embraced rainwater capture as a way of conserving community water supplies while maintaining healthy gardens. Unfortunately, rain barrels are sometimes at odds with the law. Facing certain water scarcity, cities and states have begun to wrestle with the conundrum of water rights versus conservation. When it all shakes out, will you own the rain that falls on your own property?

Capturing rain may be one of humanity's most ancient methods of acquiring water, but now it's coming back in vogue. Rather than press their luck with drought, conservation-conscious homeowners are setting up rudimentary rain barrels and elaborate rainwater storage systems to catch precipitation for nondrinking purposes, such as watering their lawns. But while rainwater may seem like a global common, nowadays it depends on where you live: By capturing rainwater, some homeowners are breaking the law. This has put city and state governments in an awkward position--smack in the middle of competing water users and advocates, often from within their own agencies, of conserving water to protect supplies.

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While laws about rainwater collection are often murky, Colorado's are quite clear: Homeowners do not own the rain that falls on their property. (Update: As of June 28, two new laws allow Coloradans to collect rain legally.) The Rocky Mountain state uses a convoluted mix of first-come, first-serve water rights, some of which date back to the 1850s, and riparian rights that belong to the owners of land lying adjacent to water. A single person catching rain wouldn't make a difference to water rights holders, according to Brian Werner of the Northern Colorado Water Conservancy District. But if everyone in Denver captured rain, he says, that would upset the state's 150-year-old water-allocation system. The Colorado Department of Natural Resources estimates that 86 percent of water deliveries go to agriculture, which is already stressed by dwindling supplies. And because 19 states and Mexico draw water from rivers that originate in the Colorado Rockies, backyard water harvesting can have widespread implications (of course, the same goes for water that comes from the tap in these regions).

That said, "nobody has the inclination to go tell Grandma Jones that she can't catch some rainwater and put it on her tomatoes," Werner says. To his knowledge, the state has never prosecuted anyone for backyard water harvesting, so he tells people to go ahead with small-scale projects at their homes. Nevertheless, some state officials, such as Rep. Marsha Looper, have pushed legislation to legalize at least some rain collection. Two such bills are now working their way through the state legislature: One would allow rainwater collection only in rural areas, while the other would green-light urban pilot programs. The new rules will test the effects of increased collection, Werner says--Colorado doesn't want to let its millions of city-dwellers trap rainfall until they better understand the effects on the water system.

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While most states don't appropriate water all the way back to the source the way that Colorado does, rainwater capture raises thorny legal issues all over the country, says David Aiken, a water law expert at the University of Nebraska-Lincoln's Water Center. Many cities have begun the delicate dance of encouraging residents to conserve water by catching rain without flagrantly violating their own laws--and, in some cases, they've changed the law to accommodate homeowners. The city of Tucson, Ariz., which receives a meager 12 inches of rainfall in an average year (much of it coming in big downpours), decreed not only that collecting the rain is legal, but that all new commercial development starting in June 2010 must include a rainwater collection system. Seattle encouraged the same in new developments even though the state had interpreted its water laws to say that any rain collector was subject to a permit process, according to state hydrologist and lawyer Kurt Unger. Rather than rewrite the laws or try to force everyone in Seattle to get a permit, he says, the state granted Seattle a city-wide permit, allowing residents to set up cisterns and rainwater storage without becoming criminals. However, Unger says, that solution was easier to implement in Seattle than it would've been in Colorado--farmers aren't directly reliant on the Emerald City's rainwater, so less political strife comes from collecting it. "All that water would've drained into Puget Sound," he says. "So who cares?"

Unger says so many Seattle residents trapped their rainwater that it would've been pointless for the state to resist, even if they wanted to. But such enthusiasm hasn't been shared across the West until recently. Many residents of Western states just didn't see the point of collecting rainwater, or didn't want to retrofit their homes to capture the paltry amount of rainfall in their area, according to Michael Dietze, a professor specializing in sustainable living at Utah State University. "When you need the water out here, it's not raining," he says. However, that era is coming to an end: People have realized that large-scale rainwater collectors can make a big difference, even in an arid climate, Dietze says. A legal fight erupted last August in Utah--which, like Colorado, had a blanket ban on rainwater collection--when car dealer Mark Miller wanted to capture rainwater on the roof of his dealership and use it to wash cars. Utah's legislature just passed a bill last month, which now awaits the governor's signature, that would allow catchments up to 2500 gallons--but Dietze thinks that won't be the end of it. After all, he manages the Utah House, the university's model sustainable home, whose 6500-gallon rooftop rain collector breaks even the new state law.

With water systems across the country already highly or fully appropriated, and with drought aggressively depleting supplies, Aiken predicts that legal battles over who owns the rain won't go away anytime soon. Old water-allocation systems remain in direct conflict with a growing movement for DIY water conservation, including rainwater collection--an approach advocated by the Environmental Protection Agency for at least a decade. But just how seriously conservation butts heads with existing water rights remains to be seen. "That's going to depend on Obama's EPA," Aiken says, "and what they prioritize."

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